Posts Tagged ‘concerted activity’

National homebuilder, D.R. Horton, Inc. is embroiled in a legal battle with the National Labor Relations Board (“NLRB”) over whether a provision in its employment contracts requiring its employees to engage in a mandatory arbitration agreement that waived the employees’ rights to participate in class or collective actions violated the employees federally protected right to engage in “concerted activity” for their mutual aid and protection.

The dispute arose when one of the homebuilder’s superintendents filed a charge with the NLRB alleging that he and other employees were prevented from pursuing claims that they were misclassified as exempt workers under the Fair Labor Standards Act by virtue of the homebuilder’s allegedly illegal dispute resolution procedure that blocked employees from pursuing class or colletive actions in court or in arbitration. The NLRB sustained the charge and the case was appealed all the up to the U.S. Court of Appeals for the Fifth Circuit.

The case was argued before the Fifth Circuit earlier this month. The NLRB’s attorney argued that the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity for their mutual aid and protection and that the homebuilder’s broadly worded arbitration policy interfered with the opportunity of employees to obtain class or collective litigation of their employment-related claims in addition to their right to assert claims in a concerted manner. The homebuilder’s attorney argued that never before has the NLRB found that the NLRA gives employees the right to engage in class or collective litigation and that the NLRA contains “no clear congressional mandate” making the dispute resolution procedure used by the homebuilder illegal. According to the homebuilder’s attorney, vague references to concerted activity in NLRB decisions does not demonstrate a clear congressional mandate under the NLRA that would justify the court in denying the enforcement of an otherwise lawful arbitration agreement. A decision is awaited.

The Fifth Circuit’s rulings could have a significant impact on how builders and employers in general draft their dispute resolution provisions.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

A National Labor Relations Board (“NLRB”) administrative law judge (commonly referred to as an ALJ) recently directed an employer to remove a provision from its social media policy that prohibited employees from using social media during “company time,” on the basis that such a prohibition violated employees’ rights under the National Labor Relations Act (“NLRA”).

In the EchoStar Technologies, LLC case, an employee challenged two provisions in the company’s updated employee handbook that related to the company’s social media policy. Specifically, the employee challenged the prohibition against making disparaging or defamatory comments about the company and the prohibition against employees using social media with company resources during company time.

The employee argued that such prohibitions violated Section 8(a)(1) of the NLRA, which bans employer interference with an employee’s Section 7 rights. Section 7 of the NLRA protects employees’ rights to engage in unionization activities and the right of nonunion employees to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRB general counsel’s office later filed a complaint in the case.

In ruling that both challenged provisions should be removed from the company’s employee handbook, the ALJ noted that this case centered around whether a reasonable employee would view the company’s social media policy as chilling unionization activities or other protected concerted activities. The test for making such a determination is whether an employee’s Section 7 rights “suffered a reduction or inhibition” as a result of the policy. This test is applied with the reasonable person standard, meaning the determination considers how a reasonable person would react to the prohibition, not whether the employees involved actually felt threatened.

The ALJ struck down the ruling banning “disparaging comments” on social media sites on the grounds that it was similar to another case where the NLRB did not allow a rule prohibiting “derogatory” comments about the employer. In Southern Maryland Hospital Center, 293 N.L.R.B. 1209, 132 LRRM 1031 (1989), the NLRB explained that such a ban is problematic because “an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as ‘derogatory’ toward the employer.” Accordingly, in EchoStar, the ALJ held that the prohibition against disparaging comments intruded on employees’ Section 7 activities and ordered the prohibition removed from the employee handbook.

Unfortunately, the ruling in EchoStar did not shed much light on why the ALJ struck down the employer’s prohibition against the use of social media on company time. Nevertheless, the ALJ made it clear that such a ban also needed to be removed from the employer’s handbook. We can only surmise that the ALJ agreed with the general counsel’s argument that essentially said the ban was too broad because it could be interpreted as prohibiting employees from participating in social media activities through their own devices and during their breaks, lunch, and before and after work. Notably, the general counsel’s office pointed out that the phase “company time” is ambiguous and had already been found to be problematic in other cases because it does not let employees know that protected activities may occur on breaks, during lunch and before or after work. Although the employer argued that it had a huge problem with employees using social media for personal matters during work hours its argument was to no avail.

Lesson for Employers: Social media policies raise a host of issues. Because overly broad restrictions on employees’ social media use might be deemed to violate the NLRA, employers should seek the assistance of an attorney when crafting their social media policy. The attorneys at Harmon & Davies, P.C. are here to assist you with all such needs.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.